Donald Trump's Threat to Justice Reform


Christopher N. Lasch

Donald Trump's call to ban Muslims from the country after our latest mass shooting is just the most recent example of a political ploy we've seen him and others use time and again: Exaggerate the threat, oversimplify the cause, and call for a radical change in policy rooted in racist, nativist fear.

Trump has used this kind of inflammatory rhetoric before in relation to criminal justice issues. After five youths of color were charged (falsely, we now know) in the 1989 Central Park Jogger case, Trump described New York City as a “world ruled by the law of the streets, as roving bands of wild criminals roam our neighborhoods.” Although he was not then a candidate for anything, he bought a full-page ad in which he lamented the “complete breakdown of life as we knew it,” and called for a return of the death penalty.

Almost three decades later, his racially divisive style remains unchanged. When Trump announced his candidacy for the Republican nomination, he painted a similarly desperate picture of the United States as a “dumping ground for everybody else's problems.” He reviled Mexican immigrants, saying: “They're bringing drugs. They're bringing crime. They're rapists.”

Weeks later, he exploited the accidental shooting death of Kathryn Steinle in San Francisco by an undocumented immigrant who had been deported to Mexico five times previously, to reiterate his call for a “great wall” on our southern border.

Trump is not the only politician to lace fear with thinly veiled racial hatred. The exaggeration of threat and the linking of race, crime, national security, and immigration have been constant tropes in American politics—and they have been major impediments in particular to meaningful immigration reform for the last generation.

As the War on Drugs ramped up in the 1980s and 1990s, images of Latino narco-traffickers helped lawmakers across the political spectrum tie immigration policy to criminal justice policy. Legislation like the Anti-Drug Abuse Act of 1986 (and its subtitle, the Narcotics Traffickers Deportation Act), the Anti-Drug Abuse Act of 1988, and the Antiterrorism and Effective Death Penalty Act of 1996, contained important provisions focusing on “criminal aliens.” Immigration enforcement quickly became intertwined with criminal enforcement.

The horrific events of 9/11 added a second strand to the narrative of immigrant criminality. Now immigrants were labeled not only a criminal threat but a national security threat as well. The federal government called on local law enforcement to participate in immigration enforcement as a national security measure. In 2008, the “Secure Communities” program required the fingerprints of every prisoner booked into a jail or prison nationwide to be run through federal immigration databases. The immigration enforcement system had successfully enlisted local criminal justice systems across the nation to feed the deportation machinery.

This fear-based policymaking has not served us well.

It is by now commonplace to recognize that the War on Drugs produced wildly disproportionate incarceration and over-policing of communities of color. With immigration enforcement tied to the War on Drugs, we have seen similar results. Writing in 1998, Kevin Johnson (now Dean of the University of California-Davis School of Law) described a “war” on Mexican immigrants with “unmistakable” racial aspects, noting that the racial subordination of citizens and non-citizens is “inextricably linked.”

Today, the marriage of the immigration and criminal justice systems has resulted in record deportation and detention numbers, largely focused on immigrants from Mexico and Central America—with nearly 34,000 people warehoused in immigration detention every day.

Promoting fear-based narratives has led to the failure of immigration reform. Both President George W. Bush and President Barack Obama have sought meaningful and comprehensive immigration reform, but the dominant narratives, identifying immigrants with criminals and terrorists and promoted relentlessly by both administrations, have completely undermined reform efforts.

Trump's fear-based, race-based views would likewise kick to the curb any hope of meaningful reform in criminal justice.

It has taken much grief and hard work, but the bipartisan consensus on the need for criminal justice reform demonstrates at least an inclination to roll back the years of one-dimensional policymaking that gave us the 18:1 crack-to-powder-cocaine sentencing imbalance and a 600% explosion in the country's prison population, with African American men representing nearly 40% of those incarcerated.

Trump's recent comments, winning him the endorsement of a major New England police union—”anybody killing a police officer, death penalty is going to happen, OK”—demonstrate that his current thinking on criminal justice issues has not evolved since 1989, when he attributed lawlessness to a waning of police power.

“BRING BACK OUR POLICE!” his ad calling for the death penalty for the Central Park Five cried out. “Let our politicans give back our police department's power to keep us safe.” His current criticism of police demilitarization (“You know they’re taking away the military equipment,” he warned the police union), in the wake of the string of deaths of people of color at the hands of police, echoes these cries, and it betrays Trump's position as white nostalgia for unlimited police power.

In 1989, he wanted to “unshackle” the police from “the constant chant of 'police brutality.'” That is the opposite of what the country needs right now.

Fear also quickly leads to lawlessness. Trump's plan to ban all Muslims from the country has “many many legal problems,” according to law professor and national security expert Steve Vladeck. And an attempt by Texas to keep out Syrian refugees was rejected by a federal court this year—in a decision that may block the efforts of more than a dozen other states to do the same. Similarly, legal problems have plagued the effort to commandeer local law enforcement for immigration enforcement purposes.

And last year's episode involving thousands of women and children fleeing violence in Central America— mischaracterized by the Obama administration as a wave of “illegal” immigrants rather than a wave of refugees—led to a fear-based family detention policy that flouted the law.

The administration actually argued that these women and children should be held without bond due to national security concerns.

The fear-based rhetoric of Trump—and others—puts any hope of immigration reform, and justice reform, further out of reach.

Nuanced policymaking requires deep analysis and a commitment to pursuing our ideals. Our politicians, rather than inciting limbic reactions rooted in our basest emotions, should appeal, as Abraham Lincoln did, to the “better angels of our nature.” There may be much to fear. But Fear itself should top the list, particularly when it is combined with implicit or explicit attempts to exploit the racial and ethnic divides that have historically vexed us in our quest for meaningful progress.

We should gird ourselves to engage with today's crises not with fear, but with hope.

Václav Havel set out the challenge over a generation ago, when he wrote: that hope “is not the conviction that something will turn out well, but the certainty that something makes sense, regardless of how it turns out.”

Christopher N. Lasch is Associate Professor at the University of Denver Sturm College of Law. His scholarship focuses on the intersection of immigration and criminal law. Prof. Lasch welcomes readers' comments.

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